State Court Seems Set to Uphold Gay Adoptions

The California Supreme Court appeared Wednesday to be headed toward upholding adoptions by gay, lesbian and other unmarried couples.

The justices heard oral arguments in a case challenging so-called second parent adoptions -- a widely used procedure in which a person adopts the child of his or her unmarried partner.

The case involved two women, identified in court as Sharon S. and Annette F., who began a long-term relationship in 1989 after meeting at Harvard’s graduate school of business. During the relationship, Sharon had two sons, in both cases becoming pregnant by artificial insemination from an anonymous donor.

Annette adopted the first boy, Zachary, now 6, and was in the process of adopting the second child, Joshua, 4, when she and Sharon broke up.

Annette’s adoption of the 6-year-old is final. Sharon had given her consent to the adoption of the 4-year-old, but now wants to withdraw it.

When the case went to court, a trial judge in San Diego ruled that Sharon could not withdraw her consent because she had missed the legal deadline.

But an appellate court disagreed, ruling that the second-parent adoption process had never been established by state law. The process had been set up by administrative agencies which had no legal authority to approve such adoptions except in cases involving married couples, the appeals court ruled.

That ruling alarmed many gay parents because it threatened to invalidate thousands of adoptions.

In 2002, a new state law on adoptions took effect which explicitly allows such adoptions. But that law applies only to people who are in registered domestic partnerships. If the high court were to rule against second-parent adoptions in the current case, the ruling could invalidate adoptions finalized before 2002 and eliminate future adoptions for couples who have not registered their partnerships.

In parrying with lawyers Wednesday, several justices suggested that the appeals court took the wording of the state adoption law too literally.

Chief Justice Ronald M. George suggested that trial judges were in the best position to determine “the best interest of the child” -- the legal test for approving an adoption.

The state law that existed before 2002 includes language saying that biological parents must “relinquish their parental rights” to the adopting parent. Opponents of second-parent adoptions say that language should bar the adoptions because in a second-parent procedure, the biological parent continues to have parental rights.

But Justice Kathryn Mickle Werdegar suggested the language was merely “descriptive” of traditional adoptions, not a bar to an untraditional one.

Justice Joyce Kennard noted that opponents of second-parent adoptions argued that a previous state high court ruling upholding an adoption by a stepfather applied only to married couples.

“In my view, [accepting] that distinction would be embracing a public policy by this court that we will be disfavoring adoption by unmarried persons generally, by gays in particular,” Kennard said.

But Justice Marvin Baxter expressed concern that allowing the adoption procedure for unmarried couples could have unintended consequences.

“Isn’t that reflective of a public policy that says a child should have no more than two parents?” Baxter asked. He raised the specter of four parents, each with legal rights, adopting one child.

John Dodd, an attorney for Sharon, warned that a ruling in favor of Annette could in fact have that result.

“There is no limit to the number of parents, and I think that is a frightening possibility,” he said.

But Charles A. Bird, representing Annette, said the court could make clear in its ruling that the state favors adoptions by no more than two parents.

“From the perspective of the child, whether the functioning parents are married is irrelevant,” Bird argued.

Judith Klein, who represents the child in the case, said it was in the best interest of the boy not to be adopted by Annette.

Klein said after the hearing that she based her position on the conflicts between the two women, not on any qualms about Annette’s abilities as a parent.

“It subjects the child to the same conflict that children of divorced parents are subjected to,” she said.

A ruling by the high court in Sharon S. vs. Superior Court, S102671, is expected within 90 days.